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General. When an application for status as a permanent resident under section
of the Act, or section 1 of the Act of November 2, 1966, or section
of the Act of October 29, 1977, is made before an order to show cause is served, the decision on the application shall be made by the district director. If such application is made after service of an order to show cause, the decision on the application, including any relating requests for waivers of inadmissibility, other than under section
of the Act, shall be made by the immigration judge.
Denial. If at any stage of the proceedings it is determined that an application should be denied because the applicant is ineligible under section
of the Act or
8 CFR 245.1
, and appropriate order shall be entered notwithstanding normal processing has not been completed.
When the district director finds that applicant for adjustment of status is no longer entitle to a preference or immediate relative classification accorded him or her as the beneficiary of an approved him or her as the beneficiary of an approved visa petition, and denial of the application for adjustment is contemplated as a consequence thereof, the denial decision shall be deferred until revocation proceedings under
8 CFR 205
have been completed even though other grounds for denial are also being asserted,
When the district director finds that a section 245 application or section 1 Cuban application should be denied and the applicant is in a lawful status or deportation proceedings should not be instituted because of appealing humanitarian factors, the applicant shall be notified on Form I-290C that the case has been certified to the Associate Commissioner, Examinations, and the reasons therefor shall be stated briefly on the form.
Form I-291 is used to notify an applicant of the denial of his or her application by the district director and of the required departure date, unless the decision is being certified to the Associate Commissioner, Examinations or expulsion proceedings would not be instituted (e.g., a parolee). This informs the applicant that if he or she fails to depart on time, expulsion proceedings may be instituted. The last sentence of the for, which states that the application for adjustment may be renewed during
such proceedings is stricken when the applicant is ineligible for adjustment because of the provision of section
of the Act. If an application is denied after certification to the Associate Commissioner, Examinations, and the applicant's departure is being required, he or she is informed by letter which, when appropriate, advises of the right to renew the application in the course of expulsion proceedings.
In determining whether an application shall be denied as a matter of discretion the district director should be guided by paragraph (d), particularly subparagraphs (1), (2) (3), and (5) thereof.
Approval. An application under section
of the Act or under section 1 of the Act of November 2m 1966, shall not approved until agency checks requested on sheets 1,2,3,and 4 of Form G-325A have been completed in accordance with OI 105,10, any required visa number has been allocated, and the applicant has been examined by a United States Public Health Service medical officer or designated civil surgeon and INS officer. The medical examinations must be valid in accordance with OI 245.3(a).
In determining whether an application should be granted as a matter of discretion, notwithstanding the existence of adverse factors, the district director should be guided by paragraph (d), particularly subparagraphs (1), (4), and (5) thereof.
Uniformity of decisions. In order to achieve more uniform decisions with respect to the exercise of discretion in section 245 cases. the following action shall be taken to assure adherence to published precedent decisions and Service policy.:
All service officer engaged in the adjudication of section 245 applications shall be aware of pertinent precedents and policy.
When a section 245 application is denied as a matter of discretion, the written decision prepared by the adjudicator shall cite any published precedent which is applicable or which reasonably approximates the situation in the case; if the adjudicating officer finds that there is no such published precedent and that any equities in the case are not substantial, the favorable and unfavorable factors which were considered in reaching the conclusion that the application should be denied.
Every denial of a section 245 application solely as a matter of discretion, shall be reviewed by a district officer no lower that Assistant District Director, Travel Control before the decision is served.
If an adjudicator determines that a section 245 application should be granted in the exercise of discretion, despite the existence of an adverse supervisory officer before the applicant is notified of the decision. If a formal written decision is not prepared in such a case, the adjudicator shall note Form I-468 to show "Approval warranted despite (specify adverse factor or factors) for following reason: (specify)."
In determining whether or not discretion shall be exercised in favor of the applicant, the adjudicator shall consider, in addition to published precedents, the Service policy expressed in OI 245.3(b), including the policy that application should not be denied as a matter of discretion when substantial equities exist by virtue of which the district director would permit the applicant to remain in the United States until he receives a consular invitation to appear in connection with his application for an im
When a renewed section 245 application is made to an immigration judge in deportation proceedings in a case that was reviewed in accordance with subparagraph (3), a trial attorney shall be assigned.
If the immigration judge grants the renewed application, the following action shall be taken:
If the district director believes that the immigration judge's rationale in granting the application is reasonable and does not amount to an abuse of discretion, he shall accept the decision without opposition. Such instances should be rare, in view of the care which adjudicating and reviewing officers in the district are expected to devote to decisions involving discretionary denials.
If the district director believes that the immigration judge's rationale in granting application is so unreasonable as to amount to abuse of discretion, he shall direct the trial attorney to appeal to the Board of immigration Appeals.
If a district director believes that a decision which has become final (whether by the district director or Board of Immigration Appeals) clearly has precedential value he shall forward a copy to the Central Office for possible publication in accordance with
. If he believes a decision by the immigration judge has become final clearly has precedential value, he shall request certification of that decision to the Board.
Maintenance of files of interviewed cases awaiting additional documents or visa number. In any case where the required interview has been conducted and the case may be approved except the non-receipt of required document or visa number, the case will be assigned to an officer for final action. The files of cases which fall in this category shall not be maintained by the individual officer except in those instances where only one officer is assigned to section 245 cases.